(T.S. Thakur and Prafulla C. Pant, JJ.)
Babu Singh Kushwaha ________ Appellant
v.
CBI and Anr. _________________ Respondent(s)
Criminal Appeal No. 1482 of 2015, decided on November 4, 2015
[Arising out of SLP (Crl.) No. 10149 of 2014]
With
Crl. Appeal No…1483………….. of 2015 @ SLP (Crl.) No. 4488 of 2015 and Crl. Appeal No…1484…….……of 2015 @ SLP (Crl.) No. 8912 of 2015, Criminal Appeal No. 1482 of 2015 (Arising out of SLP (Crl.) No. 10149 of 2014)
The Order of the court was delivered by
Order
1. Leave granted.
2. The High Court has by the orders impugned in these appeals declined to release the appellant on bail pending disposal of three different cases filed against him by the Central Bureau of Investigation. The cases in question relate to what is known as N.R.H. M. Scam in the State of U.P. The appellant was a minister in the State council of Ministers and is one of the accused person apart from several others being prosecuted for offences punishable under Sections 120B, 409, 420, 468 and 471 and Section 13(2), 13(1)(C) and 13(1)(d)(II) of the Prevention of Corruption Act.
3. It is common ground that the appellant was taken into custody on 03.03.2012 and has been in custody for more than 3½ years by now. It is also not in dispute that in RC 220 2012 E 0001 EOU-IV, the prosecution has cited as many as 450 witnesses in the charge-sheet filed by it before the Trial Court. These witnesses except one Girish Malik, just about 7 witnesses have so far been examined including PW 345 Girish Malik who is described by the prosecution as its star witness. Similarly in RC 220 2012 E0002 EOU IV the prosecution has cited 555 witnesses against the accused persons including the appellant herein. Not a single witness in the said list of witnesses has however been examined ever since the filing of the charge-sheet and framing of charges against the accused persons. Incidentally, Girish Malik PW 180 cited in the said charge-sheet also happens to be one of witnesses in this case against the appellant. In the 3rd and the only other case registered against the appellant under RC 220 2012 E 0003 EOU-IV, the prosecution has filed a charge-sheet citing 241 witnesses including Girish Malik cited as PW 89 in the list. Here again not a single witness has been examined by the prosecution so far. It was in the above background that the appellant had applied for bail firstly before the Trial Court who declined the same and later to the High Court who concurred with the view taken by the Trial Court in rejecting the plea for bail.
4. When SLP (Crl.) No. 10149 of 2014 came up before a Bench comprising Hon’ble J.S. Khehar and N.V. Ramana, JJ it was directed that the Trial Court shall record the depositions of the vital witnesses including that of Manvendra Chadha and Girish Malik within a period of three months from the date of the framing of charges. The matter then came up before us on 27-10-2015, when Mr. Maninder Singh, learned ASG sought a short adjournment to take instructions as to the time frame within which Manvendra Chandha and Girsih Malik prosecution witnesses could be examined by the prosecution. Mr. Singh today submits on instructions that while Girish Malik has already been examined in RC 220 2012 E0001 EOU-IV, he remains to be examined in the remaining two cases filed against the appellant. He further submits that apart from the said witnesses, there are nearly 15 other witnesses who are according to the prosecution important and need to be examined before the prayer for bail made by the appellant could be considered. He submits that the prosecution is ready and willing to abide by any direction from this Court as to the time frame within which to examine the important witnesses and in case there is any default on its part, this Court could direct enlargement of the appellant on bail.
5. On behalf of the appellant, Mr. Gopal Subramaniam, Dr. A.M. Singhvi and Mr. K.V. Viswanathan, learned senior counsel strenuously argued that the prosecution is unnecessarily delaying the trial and adding to the list of the so called vital witnesses against he appellant. They submitted that the statement made before the bench on 20-08-2015 simply mentioned Manvendra Chadha and Girish Malik as two vital witnesses which the prosecution intended to examine before the prayer for bail could be considered. Addition of as many as 15 other names to the list of so called vital witnesses according to them was intended to smomehow frustrate the prayer for grant of bail ignoring the fact that the appellant has been suffering incarceration for the past 3 ½ years and there is hardly any progress at the trial. It is submitted that this Court has already granted sufficient opportunities to the prosecution to examine all such witnesses as are vital for its case. It was submitted that since the prosecution has failed to do the needful within the time allowed, the prayer for bail could be allowed and the appellant directed to be released from custody.
6. We have given our anxious consideration to the submission made at the Bar. It is true that on 20-08-2015 when the matter came up before the other Bench, the prosecution appears to have named Manvendra Chadha and Girish Malik as vital witnesses. It is also true that this Court had directed the deposition of the said witnesses to be recorded within a period of three months. For whatever reason the prosecution has not been able to examine the said two witnesses in all the three cases registered and pending against the appellant although it has had an opportunity to do so. No explanation is forthcoming for this default on the part of the prosecution, although according to Mr. Singh the witnesses were present for examination before the Trial Court on the dates fixed but could not be examined for no fault of the prosecution. He submitted that either there was a strike at the Bar or the Judge concerned was on leave or one of the accused had absented. It was submitted that the charges were framed in one case only in October, 2015 and the period of three months granted by this Court has yet to expire.
7. Be that as it may the fact remains that the appellant has been in custody for the past 3½ years. It is also evident that the number of witnesses cited by the prosecution is so large that the completion of trial itself may take a few years. Denial of bail to the appellant in that fact situation does not appear to be just and proper.
8. In the circumstances therefore and keeping in view the orders earlier made by us, we are inclined to direct that the prosecution shall have a final opportunity of three months to examine Girish Malik and Amit Chandha or any other witness whom it may propose to examine within this period. Having said that we deem it proper to direct that the Trial Court shall upon completion of the period of three months direct release of the appellant on bail on furnishing bail bonds and complying with such conditions as the Court may deem fit and proper to impose subject to the condition that the Trial Court is satisfied that the delay in completion of the examination of the witnesses which the prosecution may like to examine in support of its case is in no way attributable to the appellant. The appeal is with that direction allowed and disposed off.
9. We are informed by learned counsel for the parties that one of the accused persons in RC 220 2012 E 001 EOU-IV has filed an application for modification alteration of the charges in RC No. RC 220 2012 E 0002 EOU-IV. It is apprehended by Mr. Singh that pendency of the said application may prevent the Trial Court from proceeding with the recording of the evidence and consequently result in the grant of bail to the appellant by default. We however make it clear that the pendency of the application filed by any accused person in any one of the three cases mentioned above or any further application that any accused person may wish to file shall not prevent the Trial Court from proceeding further with the recording of the evidence.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1502 OF 2015
(Arising Out of SLP (Crl.) No. 8793 of 2015)
KAMLESH SINGH @ KAMLESH KUMAR APPELLANT(S)
VERSUS
STATE OF U.P. & ANR. RESPONDENT(S)
ORDER
10. Leave granted.
11. The High Court has declined anticipatory bail to the appellant who is being prosecuted for offences punishable under Sections 120-B, 420, 467, 468, 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The investigation has since been completed and a chargesheet filed before the jurisdictional Court. Learned counsel for the appellant points out that in similar other cases this Court has directed the accused to deposit the amount of loss allegedly caused to the State and upon deposit of the same the accused has been protected against arrest pending trial. That position is not disputed by Mr. Maninder Singh, learned Additional Solicitor General appearing for the respondent-State. Under the circumstances, therefore, we direct that in case the appellant deposits a sum of Rs. 3,88,800/- (Rupees Three Lakhs Eighty Eight Thousand Eight Hundred) representing the alleged loss caused by the appellant, within two weeks from today and also furnishes bail bonds in a sum of Rs. 50,000/- (Rupees Fifty Thousand) to the satisfaction of the Trial Court with two sureties in the like amount, he shall stand enlarged on bail. The deposit shall be made before the Trial Court. The amount so deposited shall stand transferred to the State for being utlized towards National Rural Health Mission. The appellant shall however refrain from tampering with the evidence and shall cooperate with the Trial Court for an early completion of the trial.
12. The appeal is accordingly allowed and disposed off in the abovesaid terms.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1488 OF 2015
(Arising out of S.L.P. (Crl.) No. 5935 of 2015)
DEVENDRA MOHAN … Appellant
VERSUS
State of U.P. & Anr. …Respondents
ORDER
13. Leave granted.
14. This appeal arises out of an order passed by the High Court declining bail to the appellant who is being prosecuted for an offence punishable under Sections 120-B, 420, 465, 468, 471 of the Indian Penal code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 in RC-220-2012-E-0002 along with six others including Mr. Babu Singh Kushwaha, a former Minister. In appeal filed by Mr. Babu Singh Kushwaha against the order passed by the High Court declining bail to him, we have today by a separate order issued certain directions to the Trial Court to record the statement of certain witnesses which the prosecution considers to be filed for their case within a period of three months. The said directions in our opinion are applicable even to the case on hand especially when the case is similar to the one filed by Mr. Babu Singh Kushwaha. We accordingly dispose of this appeal in terms of our order dated 4th November, 2015 passed in SLP (Crl.) No. 4488 of 2015 in Babu Singh Kushwaha’s case.
15. We had by our order dated 7th October, 2015 granted to the appellant herein interim bail for a period upto 16th November, 2015. Mr. K.V. Viswanathan, learned senior counsel for the petitioner submits that the said period could be extended by another 3 months particularly when there is no allegation that the appellant has in any manner tampered with the evidence or otherwise been uncooperative with the ongoing trial. Mr. Maninder Singh, learned ASG does not seriously oppose that prayer. We accordingly direct that the interim bail granted to the appellant shall stand extended but only for a period three months from 16th November, 2015.
16. The appeal is accordingly disposed off in the abovesaid terms.
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